Unholy choices to lead child abuse commission

Cardinal George Pell, centre, at the press conference announcing the royal commission last week.
Photo Anthony Johnson

by
Claire Stewart

The federal government will have to tread carefully when it selects commissioners for the upcoming child sex abuse inquiry, given the Catholic representation on the bench and at the bar and a constitutional ban against applying religious tests for public office.

Senior barristers, who declined to be named, are warning that the sensitive nature of the inquiry means the chosen commissioners cannot be a Catholic “of any stripe", because this would cause too much trauma for the victims.

The government has been careful to say the investigation is not just about the Catholic Church, but it is expected to come under particular scrutiny. It is likely the commission will be run by an eminent former judge or a sitting judge on secondment, with up to 10 commissioners.

Melbourne University dean of law Carolyn Evans, an expert in religion and the law, says judges in Australia are not expected to step aside on the basis of religion.

Section 116 of the Constitution says no religious test shall be required for any office or public trust under the Commonwealth. But Evans says this is “a bit of a furphy" because the government wouldn’t be explicit about its reasons for rejecting certain candidates.

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“I don’t think the government would ever come out and say [the commissioners] can’t be of a particular religion," she says. “If it was to be as explicit as that there would be a constitutional problem. But the question for the government is who is, and will appear to be, neutral, independent, trustworthy and fair."

Sydney barrister Andrew Morrison, SC, who as spokesman for the Australian Lawyers Alliance has campaigned for a Royal Commission into the Catholic Church, says the scale of the investigation means the inquiry will need between six and 10 commissioners.

But selecting commissioners the Catholic Church endorses or agrees to would be “a great way of ending up with an inquiry that is hamstrung from the outset", he says.

The inquiry must be led by someone of enormous capacity and understanding, Morrison says.

Respected former judges
Michael Kirby
and Jim Spigelman have been suggested as potential candidates to head the inquiry. Kirby sat on the High Court and is an Anglican, while Spigelman was chief justice of NSW and is Jewish.

Age will also be a factor. Kirby is 73 and Spigelman 66. The government has estimated the commission will run for five years, but this is viewed as a conservative estimate. As one silk asks: “Who is going to give up that amount of time?"

Some have suggested the government may choose a sitting judge and make arrangements for a secondment-style appointment to the commission, such as the NSW government did when it appointed
Barry O’Keefe
to the state’s Independent Commission Against Corruption. Commissioners would be paid at government rates, well below the fees earned by senior counsel or retired judges working in arbitration.

Outside of the commissioners, a swathe of barristers and solicitors stand to make a small fortune advising clients appearing at the inquiry and making submissions.

The Catholic Church and other state and private organisations have already begun seeking informal legal advice on how best to approach the investigation and respond to the draft terms of reference, released last week. But in the absence of an official start date for the inquiry, formal requests for representation have not yet been made to barristers.

The 2009 Victorian Bushfires Royal Commission had three commissioners, six counsel assisting them, another 16 counsel (eight of whom were silks) representing various parties and a further eight barristers (including three senior counsel) who sought special leave to appear.

The three bushfire commissioners earned a total of $1.2 million, ­counsel assisting $2.9 million and solicitors assisting $9 million.

Law firm Corrs Chambers Westgarth acted in the bushfires commission. It also represents the Catholic Church’s Melbourne archdiocese, and is likely to have a large role in the abuse inquiry. However, the number of lawyers to be employed by the church will depend on whether it takes a united approach or instructs each diocese to act separately.

Potential barristers to act for the church include Peter O’Callaghan, QC, and Jeff Gleeson, SC, who are independent commissioners for its Victorian internal abuse investigative entity dubbed the Melbourne Response.

Sydney silk Francois Kunc, SC, is also known for his ties to the NSW diocese and was rumoured to be in line to act for the church in the inquiry. Kunc, who has represented high-profile clients such as Paul Hogan and Ginia Rinehart, says he is unable to comment on whether the church has approached him.